2008 (8) TMI 761 - AT - Central Excise

Demand - Clandestine removal - recording of excess Soda Ash found available over the recorded balance at R.G. 23A part I valued at ₹ 1,10,597/-

Issues involved:
Appeal against impugned Order, Correct determination of points of the order, Demand of duty arising from private note book, Confiscation of excess raw material, Confirmation of demand on short inventory, Penalty for contravention of Central Excise Rules, Rejection of private documents, Lack of evidence by Revenue, De novo adjudication process, Allegation of excess production and clearance, Failure to find labour contractor, Lack of corroborative evidence, Benefit of doubt to the appellant, Duty demand relating to clandestine removal, Imposition of penalty.

Analysis:

1. Appeal against impugned Order:
The Revenue appealed against an Order directing the Commissioner to apply to the CESTAT for the correct determination of certain points. The Order was based on the fact that private documents seized during a search within the factory premises were not properly considered. The Revenue contended that the demand of duty from the private note book maintained by the Labour Contractor was justified, along with the confiscation of excess raw material and imposition of penalties.

2. De novo adjudication process:
The de novo adjudication process was initiated due to the rejection of private documents by the Adjudicating Authority. The Revenue argued that the Labour Contractor's avoidance of summons should have led to a confirmation of demand against the Respondent. However, the Consultant for the Respondent highlighted that the Revenue failed to provide substantial evidence to support their claims during the de novo proceeding.

3. Allegation of excess production and clearance:
The Revenue's grounds of appeal included concerns about the rejection of private documents, doubts regarding the assessee's motive, and the failure to consider the provisions of the Central Excise Act. The Tribunal emphasized the importance of corroborative evidence in cases of clandestine manufacture and surreptitious removal, stating that suspicion alone is not sufficient for proof.

4. Lack of evidence by Revenue:
The Tribunal noted that the Revenue could not substantiate their charges against the Respondent with concrete evidence. The absence of reliable evidence led to the Tribunal upholding the de novo order of adjudication, as the suspicion raised was not supported by corroborative facts.

5. Benefit of doubt to the appellant:
The Tribunal acknowledged the principle that the onus of proof of clandestine removal lies with the department. In this case, the lack of sufficient corroborative evidence led to the appellant being given the benefit of doubt. The Tribunal stressed the need for concrete evidence to establish clandestine activities.

6. Imposition of penalty:
The Tribunal concluded that the duty demand related to clandestine removal was the principal grievance of the Revenue. As there was no evidence to disturb the de novo order of adjudication, the appeal failed, and the order was sustained. Other aspects such as confiscation of excess raw material and imposition of penalties remained untouched by the decision.

In conclusion, the Tribunal upheld the de novo order of adjudication due to the lack of substantial evidence provided by the Revenue to support their claims of clandestine activities. The importance of corroborative evidence in establishing allegations of excess production and clearance was emphasized, leading to the benefit of doubt being given to the appellant. The decision highlighted the necessity for concrete proof in cases involving duty demands and penalties.

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